Research › Search › Judgment

Jharkhand High Court · body

2012 DIGILAW 570 (JHR)

Nilam Devi v. Satendra Singh

2012-04-13

D.N.PATEL

body2012
Order Per D.N. Patel, J. - The present writ petition has been preferred under Article 227 of the Constitution of India against an order, passed by the 1st District Judge, Chatra, dated 15th March, 2012 in Title Appeal No. 2 of 2008, whereby, the application, given by the petitioner (original plaintiff in Title Suit No. 27 of 1999 and respondent in Title Appeal No. 2 of 2008) for amendment in the plaint of Title Suit No. 27 of 1999, has been dismissed. 2. Learned counsel for the petitioner (original plaintiff in Title Suit No. 27 of 1999 and respondent in Title Appeal No. 2 of 2008) has submitted that an application was given by the original plaintiff dated 27th February, 2012 in Title Appeal No. 2 of 2008 for amendment in the plaint of Title Suit No. 27 of 1999, especially at paragraph no.12 of the plaint to the extent that instead of “11th December, 1995”, it should now be corrected as “11st July, 1995”. This amendment has not been accepted by the lower appellate court. 3. It is submitted by the learned counsel for the petitioner that this amendment will not prejudice the original defendant in Title Suit No. 27 of 1999 or the appellant in Title Appeal No. 2o f 2008. This amendment has not been accepted by the lower appellate court. 3. It is submitted by the learned counsel for the petitioner that this amendment will not prejudice the original defendant in Title Suit No. 27 of 1999 or the appellant in Title Appeal No. 2o f 2008. Learned counsel for the petitioner has further submitted that in fact the petitioner is claiming title over the suit property and had instituted Title Suit No. 27 of 1999, which was decreed on 14th December, 2007 and thereafter, the original defendant has preferred Title Appeal No. 2 of 2008, which is pending before the learned lower appellate court and in the said pending Title Appeal, an application has been preferred by the original plaintiff in Title Suit or the respondent in Title Appeal for amendment in the plaint of Title Suit No. 27 of 1999, mainly for the reasons that the defendant is also claiming title over the suit property, on the basis of the alleged gift deed of the year, 1989 and in paragraph no.12 of the plaint, it has been stated that the original plaintiff came to know for the first time on 11th December, 1995 about the so called gift deed, but, there is an error in narration of these facts and, thus, instead of 11th December, 1995, it should have been 11th July, 1995, because on 11th July, 1995 an agreement was entered into between the original plaintiff and the original defendant and in that agreement, the original defendant has accepted the title of the original plaintiff over the suit property. Thus, the application for amendment was given, so that there may not be any factually wrong narration in the plaint and to avoid any misconception in the mind of the original defendant. This application has been dismissed by the lower appellate court, without appreciating the fact that no prejudice is going to be caused to the original defendant of Title Suit No. 27 of 1999 or appellant of Title Appeal No. 2 of 2008 and hence, the impugned order4 deserved to be quashed and set aside. 4. This application has been dismissed by the lower appellate court, without appreciating the fact that no prejudice is going to be caused to the original defendant of Title Suit No. 27 of 1999 or appellant of Title Appeal No. 2 of 2008 and hence, the impugned order4 deserved to be quashed and set aside. 4. Having heard learned counsel for the petitioner and looking to the facts and circumstances of th case, I see no reason to entertain this writ petition, mainly for the following facts and reasons: (i) The present petitioner is the original plaintiff, who has instituted Title Suit No. 27 of 1999 before the court of learned Munsif, Chatra. The suit was decreed on 14th December, 2007. (ii) Title Appeal No. 2 of 2008 was preferred by the original defendant before the court of 1st District Judge, Chatra. It is submitted by the learned counsel for the petitioner that in Title Appeal arguments have also been concluded, but, the Title Appeal is pending before the concerned lower appellate court. (iii) It appears that at the fag end of Title Appeal, an application was preferred by the present petitioner or the original plaintiff dated 27th February, 2012 for amendment in the plaint, especially in paragraph no.12 thereof. The proposes amendment reads as under: “PROPOSED AMENDMENT 1. That in para 12 of the plaint in second after the word on 11.12.95 the word “12” be deleted and its place word “7” be added.” (iv) The aforesaid proposed amendment has not been allowed by the lower appellate court by the impugned order. Looking to the impugned order, no error has been committed by the lower appellate court in rejecting the application for amendment in the plaint, at the fag end of the appeal. (v) It appears from the plaint of Title Suit No. 27 of 1999, especially paragraph nos. 15 and 18 thereof, that already there is a reference of agreement, upon which the plaintiff is relying upon. The said agreement is dated 27th July, 1995. For more than one occasion, there is reference in the plaint about this agreement; first in paragraph no.15 and subsequently in paragraph no.18. Thus, no question of any misconception, whatsoever, arises about the said agreement. The said agreement is dated 27th July, 1995. For more than one occasion, there is reference in the plaint about this agreement; first in paragraph no.15 and subsequently in paragraph no.18. Thus, no question of any misconception, whatsoever, arises about the said agreement. Therefore, the contention, which is raised by the learned counsel for the petitioner that if the amendment is not allowed, there will be a wrong narration of the facts in paragraph no.12 of the plaint, is not accepted by this Court, mainly for the reasons that each and every paragraph of the plaint cannot be read in isolation. Plaint is to be read as a whole and already there is reference in paragraph no.15 and paragraph no.18 about this agreement dated 11th July, 1995. Even in the Cause of Action i.e. paragraph no.18, there is a reference of this date of agreement i.e. dated 11th July, 1995. (vi) Moreover, it further appears from the facts of the case that a document dated 11th July, 1995 has already been brought on record by the original plaintiff, which has been marked as Ext. 1. Thus, there is no question of any misconception, whatsoever. It all depends upon the how the learned counsel for the petitioner argues out the Title Appeal as a counsel for the respondent in Title Appeal. (vii) Learned counsel for the petitioner is heavily relying upon this document dated 11th July, 1995 to brush aside the effect of so called gift deed dated 4th January, 1989, because the gift deed is a document, which is being relied upon by the original defendant in the Title Suit or appellant in the Title Appeal whereas the plaintiff is relying upon an agreement dated 11th July, 1995, which is at Ext. 1, as narrated in paragraph no.15 and 18 of the plaint. Thus, the plaint is already having a reference of an agreement dated 11th July, 1995 in between the original plaintiff and the original defendant of the Title Suit. On more than one occasion, there is a reference in the plaint of the agreement dated 11th July, 1995 and hence there is no need to amend the plaint, whatsoever, at the appellate stage. 5. Thus, no error has been committed by the lower appellate court in rejecting the amendment application, preferred by the present petitioner, vide the impugned order dated 15th March, 2012. 5. Thus, no error has been committed by the lower appellate court in rejecting the amendment application, preferred by the present petitioner, vide the impugned order dated 15th March, 2012. Thus, there being no substance, this writ petition is hereby dismissed. Petition dismissed.